Economic Analysis and Competition Policy Research

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“When the best reading of a statute is that it delegatesdiscretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.”

–SCOTUS, in Loper Bright Enterprises v. Raimondo.

The quote above raises a tension between consideration of what Congress willed and judicial notions of uncertainty. Statutes are always filled with ambiguity, and the will of Congress can be misinterpreted intentionally to create barriers to agency action. Those barriers conveniently can benefit the neoliberal agenda and big business.

That is my concern for the FTC. The FTC never basked in the sun of Chevron deference from SCOTUS, but that does notforeclose the possibility that Loper Bright will bring pain to agency endeavors, in favor of businesses.

For those not in the know, the Supreme Court’s Loper Bright decision overturned “Chevron deference.”  Under that doctrine, if Congress was clear as to the precise issue in question, then that was the interpretation of the statute from which the agency and the Court could not deviate. If the statute was ambiguous or if Congress left a gap for the agency to fill, however, a court was obliged to accept the agency’s interpretation if it was a reasonable one. 

Loper Bright rejected this notion of deference. The Court asserted itself to be the expert on statutory interpretation, and therefore it was not necessary to give any weight to the Agency’s interpretation, even where there is subject matter expertise—yes, the agencies hire economists to do cost-benefit analysis—and even where Congress expected the agency to interpret the statute. Loper Bright quite clearly suggests that the agency’s interpretation does not count. 

And what of delegations of interpretation? The Court states in Loper Bright that if there is an ambiguity in a statute, then the agency is not entitled to deference:

That is not to say that Congress cannot or does not confer discretionary authority on agencies. Congress may do so, subject to constitutional limits, and it often has. But to stay out of discretionary policymaking left to the political branches, judges need only fulfill their obligations under the APA to independently identify and respect such delegations of authority, police the outer statutory boundaries of those delegations, and ensure that agencies exercise their discretion consistent with the APA. By forcing courts to instead pretend that ambiguities are necessarily delegations, Chevron does not prevent judges from making policy. It prevents them from judging.

The hair-splitting between what is discretionary policymaking properly delegated to the agency and what is an ambiguity has, even prior to Chevron’s demise, fallen to the side of judicial intervention. Thus, this placeholder for proper discretionary authority is suspect. Just take two examples. In FDA v. Brown and Williamson, Justice O’Connor effectively barred the FDA from going after Big Tobacco, even after a recent game-changing discovery of how the execs had manipulated tobacco’s addiction. After the breakup of AT&T, Justice Scalia barred the FCC from eliminating tariff filings from AT&T’s competitors (doing so to halt AT&T’s barrage of strategies to delay entry of competitors). In each of those instances, the Court bent over backwards to protect business. Congressional purpose wasn’t important. 

So, after Loper Bright, it’s even easier to misinterpret Congressional intent, despite the quotations from the decisionabove. 

And that’s the game. Congress loses. SCOTUS and big business wins.

The FTC Act: Congress Mistrusts the Courts on Antitrust

Justice Kavanaugh cautions us to not read too much into Loper Bright. According to Bloomberg, he made the following remarks while speaking at Catholic University of America Columbus School of Law in September:

To be clear, don’t over read Loper Bright. Oftentimes Congress will grant a broad authorization to an executive agency so it’s really important, as a neutral umpire, to respect the line that Congress has drawn when it’s granted broad authorization not to unduly hinder the executive branch when performing its congressional authorized functions, but at the same time not allowing the executive branch, as it could with Chevron in its toolkit, to go beyond the congressional authorization.

If one believed this, one would think the FTC is therefore safe from SCOTUS overreach. Congress sought to remove the courts from the equation of antitrust, because they lacked expertise. Congress viewed the FTC as the overseer of how competition policy played out in the United States, removing that key function from the courts and DOJ enforcement actions. 

In considering passage of the FTC Act, Congress viewed the role of the courts in establishing competition policy with skepticism:

It is plain that the first question to be answered in considering what additional legislation upon the subject is necessary or desirable is a vital one, it is this: Should Congress attempt to maintain competitive conditions in the general interstate commerce of the country, where they still exist, and to restore such conditions where they have been destroyed, or should it accept the complete or partial overthrow of competition and resort to some other method of protecting the people against the power of combination and monopoly?

Congress questioned the wisdom of its initial foray into the world of competition policy, via the Sherman Act. While the goal of the FTC Act was to “maintain competition as an effective regulating force,” there were effective limitations on implementing such a policy. Looking for instances where they could find expertise in competition policy, Congress turned its eyes toward the English courts. As the Senate Committee on Interstate Commerce Report from 1913 states,

The Congress of 1890 very wisely borrowed the language of the common law and with it came the learning of the judges, who had from time to time declared and expounded it … the common law was that unreasonable, unfair, undue restraint upon or interference with competition or competitive conditions constituted a restraint of trade.

While the Senate looked approvingly on the English judges, it examined the U.S. courts with a bit more skepticism. In the eyes of the Senate, it was the separation of the stated policy of antitrust—maintaining competition as a regulating force—from its application in the U.S. courts that brought about their dismay, as will be discussed later. The Senate Report also described frustration with the notion that consolidation and combinations were inevitable. Instead, the Senate Report described the purpose of “maintaining competitive conditions,” and argued “when competitive conditions exist, there will be actual competition ….”

Thus, the purpose of the FTC Act was to place the scope of antitrust law interpretation squarely into the hands of the FTC and away from the courts. That scheme has been thwarted for ages, but Loper Bright brings additional complications directly in tension with the will of Congress. And, one might be mindful that there is still the clambering to upend administrative agencies altogether, as Justice Thomas hinted at in his concurrence in Whitman v. American Trucking.

Loper Bright: The Court Mistrusts Agencies (and Honestly, Congress)

Loper Bright flips the notion of expertise on its head, suggesting that the Court, not the agency, possesses the expertise to determine what the words of any administrative statute means.In that case, the statute was written to empower the National Marine Fisheries Service, a subsidiary agency of the United States Department of Commerce, to regulate fishing companies. But Loper Bright can be applied to any administrative agency, including the FTC. And the agency is powerless to overcome that interpretation, because Skidmore means whatever the Court feels it means. 

To preempt arguments that the Court was usurping power delegated to the agencies, the decision noted that Congress can always amend the statute to correct the Court’s interpretation:

The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch. And to the extent that Congress and the Executive Branch may disagree with how the courts have performed that job in a particular case, they are of course always free to act by revising the statute.

No, it can’t. Not the present day Congress. And the Court knows Congress is paralyzed. Hence the reason why Justice Kagan in her dissent suggests a power grab:

In one fell swoop, the majority today gives itself exclusive power over every open issue—no matter how expertise-driven or policy-laden—involving the meaning of regulatory law…. Its justification comes down, in the end, to this: Courts must have more say over regulation—over the provision of health care, the protection of the environment, the safety of consumer products, the efficacy of transportation systems, and so on. A longstanding precedent at the crux of administrative governance thus falls victim to a bald assertion of judicial authority. The majority disdains restraint, and grasps for power.

Even if Congress amended the statute, it can find itself ignored. One need only look to the amendment to the Tunney Act to see how quickly courts can completely ignore the will of Congress, for whatever made up reason. In the case of the Tunney Act, the DC Circuit believed that it would raise separation of powers concerns to not compel judges to enter consent decrees. Never mind that a decree is a judicial function. Never mind that courts reject plea bargains all the time. This is somehow different, and Congress can be ignored to avoid the Constitutional issue the court just manufactured. The point is: Courts are comfortable ignoring Congress. And when they do so, Congress seldom has the stomach to engage in multiple rounds of amendments. One quickly knows how this game ends.

If you don’t buy that one, consider the notion of an efficiencies rebuttal, which one finds nowhere in the Clayton Act. Lower courts developed that doctrine out of thin air, with the help of the administrative agencies that developed the notion. But wait, isn’t that the kind of rogue agency action Loper Bright is supposed to defend against?  Apparently not. Because it favors business.

Of course, one could argue the saving grace is “Skidmore deference.” Skidmore basically says that a court may give whatever weight to an agency pronouncement that it deserves—a position that the Court adopts in Loper Bright:

We consider that the rulings, interpretations, and opinions of the Administrator under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

Skidmore also doesn’t save the Agency’s interpretation, and it doesn’t save Congressional purpose or intent. As Justice Scalia points out:

Justice Jackson’s eloquence notwithstanding, the rule of Skidmore deference is an empty truism and a trifling statement of the obvious: A judge should take into account the well-considered views of expert observers. . . . It was possible to live with the indeterminacy of Skidmore deference in earlier times. But in an era when federal statutory law administered by federal agencies is pervasive, and when the ambiguities (intended or unintended) that those statutes contain are innumerable, totality-of-the circumstances Skidmore deference is a recipe for uncertainty, unpredictability, and endless litigation. To condemn a vast body of agency action to that regime (all except rulemaking, formal (and informal?) adjudication, and whatever else might now and then be included within to day’s intentionally vague formulation of affirmative congressional intent to “delegate”) is irresponsible.

The bottom line of the Court’s perversion of the statutory scheme is that it does not matter what Congress expresses in the statute. Nor does Congressional intent matter. Language is always ambiguous, and the Court here asserts it is the sole arbiter of what that language means. I have written before of the way in which judicial power has contorted progressive law to support powerful business interests. The Court stands ready to do so again.